Citation Nr: 0624091
Decision Date: 08/09/06 Archive Date: 08/18/06
DOCKET NO. 03-02 708A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to service connection for a psychiatric
disability.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
ATTORNEY FOR THE BOARD
John Francis, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1952 to
August 1954.
This appeal comes before the Board of Veterans' Appeals
(Board) from an August 2001 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) that denied a
petition to reopen a final disallowed claim for service
connection for a psychiatric disorder. On appeal in March
2004, the Board reopened the claim and remanded it for
further development. The claim is now before the Board for
adjudication.
FINDING OF FACT
The veteran's current psychiatric disability, variously
diagnosed as schizophrenia with paranoid features, anxiety
disorder, and depressive disorder, is not related to service
or any aspect thereof.
CONCLUSION OF LAW
The criteria for service connection for a psychiatric
disability have not been met. 38 U.S.C.A. § 1110, 1112 (West
2002); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159
(2005). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." Pelegrini v. Principi, 18
Vet. App. 112 (2004).
Here, the RO sent correspondence in March 2001, March 2004,
November 2004, and November 2005; a rating decision in August
2001; and a statement of the case in February 2003. These
documents discussed specific evidence, the particular legal
requirements applicable to the claim, the evidence
considered, the pertinent laws and regulations, and the
reasons for the decisions. VA made all efforts to notify and
to assist the appellant with regard to the evidence obtained,
the evidence needed, the responsibilities of the parties in
obtaining the evidence, and the general notice of the need
for any evidence in the appellant's possession. The Board
finds that any defect with regard to the timing or content of
the notice to the appellant is harmless because of the
thorough and informative notices provided throughout the
adjudication and because the appellant had a meaningful
opportunity to participate effectively in the processing of
the claim with an adjudication of the claim by the RO
subsequent to receipt of the required notice. There has been
no prejudice to the appellant, and any defect in the timing
or content of the notices has not affected the fairness of
the adjudication. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006) (specifically declining to address harmless error
doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473
(2006). Thus, VA has satisfied its duty to notify the
appellant and had satisfied that duty prior to the final
adjudication in the February 2006 supplemental statement of
the case.
In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the veteran of any
evidence that could not be obtained. The appellant has not
referred to any additional, unobtained, relevant evidence.
VA has obtained an examination. Thus, the Board finds that
VA has satisfied both the notice and duty to assist
provisions of the law.
The veteran contends that his psychiatric disability was
first manifested in service as a consequence of his
experiences in infantry training exercises and in subsequent
transportation to the Far East.
The veteran's September 1952 induction physical examination
showed no pre-service mental or behavioral abnormalities. In
his January 2002 notice of disagreement, the veteran stated
that his psychiatric disability began in basic training when
he was exposed to the noise of small arms fire and when a
tank moved above him in an exercise. After training he went
home on leave and did not return to his deploying unit on
time. In a February 2003 statement, the veteran's brother,
an Army Master Sergeant at the time, stated that he found the
veteran and brought him back to his unit. The Master
Sergeant stated that the veteran could not recall what he had
been doing or why he was absent. However, the veteran's
Report of Separation (DD Form 214) shows no time lost for
absence without leave.
In a December 2000 letter, a fellow soldier stated that he
was with the veteran when their unit traveled by sea to
Hawaii and Japan. The soldier stated that during the voyage
he witnessed the veteran displaying nervous behavior,
throwing himself to the deck, crying, and remaining isolated
from other soldiers. He had no further contact with the
veteran after the ship arrived in Japan.
In July 1953, the veteran was taken by friends to a military
hospital in Japan because he could not remember his name,
serial number, job, or father's name. He could remember that
he had been in the Army for eight months, that he had been a
high school graduate with good grades. He denied any nervous
condition or head injury. The examiner noted that the
veteran made a "great show" of looking confused and that
his answers to questions were inconsistent. The examiner
found no abnormalities on a physical examination and noted
"an inadequate personality who is malingering." The
diagnosis was dissociative reaction manifested by amnesia.
The veteran was transferred to a general military hospital
several days later for further examination in the
neuropsychiatric section. In the July 1953 hospital
discharge report, the Chief of Neuropsychiatric Service noted
that physical and neurological examinations were essentially
negative except for an unrelated digestive problem. He noted
the veteran's report of an additional amnesia episode
requiring physical restraint when his ship stopped in Hawaii.
This episode was not recorded in other medical records or in
the fellow soldier's statement. The psychiatrist concluded
that the episodes were a combination of anxiety and conscious
exaggeration rather than true dissociative episodes. He also
noted that the veteran had been experiencing no more stress
than that of routine military life. There is no evidence
showing the veteran was in combat. The psychiatrist
diagnosed emotional instability reaction manifested by
anxiety and utilization of exaggerated physical disability to
avoid adult responsibility. The veteran returned to full
duty and completed his enlistment. The August 1954 discharge
physical examination noted nothing of clinical significance.
In letters from November 1977 and May 1978, two private
psychiatrists (with the same surname) stated that they
treated the veteran since 1960. One psychiatrist noted that
the veteran had presented symptoms of neurosis since military
service with crises of anxiety, depression with destructive
episodes, and obsessive ideas with delirium. The
psychiatrist diagnosed possible psychosis schizophrenia and
prescribed tranquilizers.
In April 1978 and in June 1978, a VA psychiatrist recorded
the veteran's reported history and noted that after service
he had attended four years of college and worked as a school
teacher. Service medical records were not available for
review. He noted that in recent years, the veteran reported
feeling nervous with sleeplessness, bad humor, depression,
and forgetfulness. He also noted that at times the veteran
tried to exaggerate his nervousness and mental condition and
was better oriented than he pretended to be. He showed
memory gaps, primarily for recent events. He displayed
occasional violent outbursts, but otherwise generally
remained isolated. He was often excessively suspicious and
had "trouble in the classroom." The psychiatrist noted the
previous possible diagnosis of schizophrenia, but stated that
the veteran did not have a psychosis but rather diagnosed
depressive neurosis with paranoid personality.
In July 1978, the veteran underwent a battery of VA
psychological tests. The evaluator noted that the veteran
was resistant and complained about the tests. The veteran's
performance was unproductive and poor in content suggesting
intellectual difficulties or a deliberate attempt to perform
poorly. The evaluator diagnosed schizophrenia with paranoid
features. In August 1978, the VA psychiatrist from April and
June reviewed the test results, noted the differences in
diagnosis, and recommended further examination and treatment.
None of the VA examiners noted a review of the service
medical records or related the veteran's mental disorder to
events in service.
In May 1981, the Board reviewed the medical evidence and
concluded that the veteran's diagnosis in service, emotional
instability reaction, was a personality disorder, and not an
acquired psychosis. See 38 C.F.R. § 3.303 (c). The Board
found that a psychosis was manifested many years after
service and that there was no evidence to relate the
veteran's psychosis to any aspect of service.
Subsequently, there is no record of any treatment or
examination for a mental disorder until the veteran sought
treatment at a VA clinic for an eye condition in July 1997
and was referred for a psychiatric evaluation. The examiner
noted that the veteran had retired from 30 years of work as a
school teacher in 1986 and that the last record of VA
treatment for any reason was in 1985. There was no record of
private psychiatric treatment since 1978. Upon examination,
the veteran complained of anxiety, forgetfulness, and
irritability. The examiner noted that the veteran's answers
to questions were relevant and coherent but that his reported
multiplicity of symptoms had no relationship. The examiner
further noted exaggeration and very strong histrionic
behavior. He diagnosed an anxiety disorder with histrionic
characteristics. In December 1999, another VA examiner noted
the absence of any record of recent psychiatric treatment and
continued the diagnosis of anxiety and histrionic personality
disorder.
In September 2000, a private psychiatrist, examining the
veteran for the first time, stated that the veteran had been
receiving psychiatric care from other private physicians, a
private mental health clinic, and the VA Clinic in Mayaguez,
Puerto Rico. The psychiatrist noted the veteran's report of
experiences in basic training and travel to the Far East but
did not note a review of the service medical records. He
found the veteran displayed chronic anxiety, attention-
concentration-memory problems, irritability, and poor impulse
control. He diagnosed generalized anxiety disorder with
dissociative episodes and panic disorder. He stated that the
veteran's military experiences caused the disorder. Even
though he did not treat the veteran until September 2000 and
did not note a review of service medical records, he also
stated that the veteran was in good physical and emotional
condition prior to service.
The claims file contains records of VA treatment from March
2000 to April 2001 for conditions other than a mental
disorder. VA treatment records from October 2003 to June
2005 showed periodic examination and treatment for depression
with continued medication and no notation of crises or
deteriorating trends.
The Board concludes that the veteran's behavior in service
was indicative of a personality disorder. The Board notes
that the statements from the veteran's brother and fellow
soldier confirm the veteran's account of his experiences, and
that they are consistent with the history considered by
military examiners. However, two military psychiatrists,
including the Chief of Neuropsychiatric Service, made a clear
diagnosis of personality disorder noting the lack of any
abnormal stress and exaggerated symptoms. Personality
disorders and mental deficiencies are not diseases or
injuries within the meaning of applicable legislation.
38 C.F.R. § 3.303 (c). The Board also notes that the veteran
completed service with no further treatment and no notations
of abnormal conditions on his discharge physical examination.
There is no evidence to show that the veteran developed a
psychosis or other acquired psychiatric disorder in service.
The Board further concludes that the veteran currently has a
mental disorder, variously diagnosed as schizophrenia with
paranoid features, depression, and anxiety disorder that is
different from the earlier personality disorder. However,
medical evidence shows that these diagnoses were made no
earlier than 1977 based on reported examination and treatment
no earlier than 1960, many years after service. The Board
acknowledges that one private psychiatrist in 1978 stated
that the veteran had displayed symptoms of neurosis since
service, and that another psychiatrist in 2000 related the
veteran's disorder to experiences in service, both with
little specificity. The Board assigns less probative value
to these statements than to those of the military
psychiatrists who examined the veteran shortly after his
experiences and episodes. Both private psychiatrists
provided only a single statement with no clinical evidence
showing on-going treatment and limited explanation of their
conclusions. In addition, one stated that the veteran had a
neurosis since service although he did not examine him until
at least five years after service. Another commented on the
veteran's pre-service condition although he did not examine
him until 2000. The Board is not bound to accept medical
opinions that are based on a subjective history supplied by
the veteran, where that history is unsupported by the medical
evidence or based upon an inaccurate factual background.
Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5
Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460-
61 (1993).
Although VA examiners also noted the veteran's reported
history, none related his disorder to events in service.
Several commented on the veteran's inconsistent, exaggerated
symptoms and lack of cooperation in testing.
In sum, the weight of the credible evidence demonstrates that
the veteran's current psychiatric disorder first manifested
many years after service and is not related to his active
service or any incident therein. As the preponderance of the
evidence is against this claim, the "benefit of the doubt"
rule is not for application, and the claim must be denied.
See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App.
49 (1990).
ORDER
Service connection for a psychiatric disability is denied.
____________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs